Nirmal Singh vs Food Corporation of India and Others

R.S. Mongia, J.—The petitioner, who was working as an Assistant Grade-II(D) with the respondent-Food Corporation of India (hereinafter referred to as the Corporation), was issued a charge-sheet on May 09, 1991 for initiating proceedings for a major penalty. Since the reply to the charge-sheet was not found satisfactory a regular enquiry was ordered to go into the charges. However, on September 18, 1991, an order of promotion was issued promoting the petitioner as Assistant Grade-I (D) by the Zonal Manager (North), FCI. A copy of the order has been appended as Annexure P. 1. However, actual promotion was not given to the petitioner by the Senior Regional Manager, FCI, Punjab Region, Chandigarh on account of the pendency of the enquiry, as aforesaid. The petitioner filed a representation that pendency of the enquiry was no impediment to actually giving promotion to the petitioner as per order dated September 18, 1991. Since the representation did not bear any fruit, the petitioner filed CWP No, 16607 of 1992 in this Court for directing the respondents to actually and physically give promotion to the petitioner as Assistant Grade-I. That writ petition was disposed of at the motion stage by giving directions to the respondents to decide the representation of the petitioner by passing a speaking order within a period of three months. However, the representation of the petitioner was rejected vide order dated April 20/22, 1993, by placing reliance,on H. Qr. Circular No. 36/92 dated Dec. 17, 1992, read with Department of Personnel and Training Circular OM No. 22011/4/91-Estt. (A) dated Sept. 14, 1992. However, it was mentioned in the order rejecting the representation that the petitioner would be promoted in case he was completely exonerated of the charges levelled against him in the charge-sheet dated May 09,1991, which was being enquired into by the enquiry officer, After holding the enquiry, the enquiry officer submitted his report on February 26, 1995, holding that the charges levelled against the petitioner were not proved. A show cause notice dated March 02, 1995 was issued to the petitioner wherein it was mentioned by the Senior Regional Manager of the Corporation that he tentatively intended to discharge with the enquiry report dated Feb. 26,1995, on certain grounds and the petitioner was given an opportunity to make representation if he so desired. A copy of this notice has been appended as Annexure P-3 with the writ petition. The petitioner filed a reply to the show cause notice. The Senior Regional Manager did not agree with the reply of the petitioner and inflicted a major penalty of stoppage of three increments with cumulative effect and also ordered recovery of Rs. 14515.30 from the petitioner.

Petitioner filed a statutory departmental appeal under Regulation 68 of the FCI Staff Regulations, 1971 against the order of imposition of penalty. The appeal was decided by Zonal Manager (North) FCI, New Delhi and vide order dated January 20/22, 1999, Annexure P. 5, exonerated the petitioner with all consequential benefits. On March 08, 1999, the petitioner made a representation to the Senior Regional Manager of the FCI that in view of the complete exoneration of the petitioner by the Appellate Authority with all consequential benefits the petitioner should now be given physical promotion to the rank of Assistant Grade-I, which was ordered on September 18, 1991. Since there was no response to the representation of the petitioner, he got served a legal notice also on June 03, 1991 which also did not bear any fruit. Hence the present writ petition.

Notice of motion was issued. Reply has been filed on behalf of the respondents.

It has been stated in the written statement that as per the order dated September 18, 1993, by which the petitioner was promoted, it had clearly been mentioned that "it may be ensured that no vigilance case is pending/contemplated against the official before the release of promotion orders by the concerned authority." Since there were five subsequent enquiries pending against the petitioner on different charges, out of which the charge-sheets in four cases were issued in 1998 and in one case where the charge-sheet was issued in 1993 and recovery of Rs. 7189.60 had been ordered, the petitioner could not be given physical promotion to the rank of Assistant Grade-I (D) pursuant to the order dated September 18, 1991.

Learned Counsel for the petitioner argued that the petitioner''s promotion vide order dated Sept. 18, 1991 could be withheld or kept in abeyance as on that date an enquiry was pending, but after being exonerated from the same the petitioner''s promotion cannot be withheld w.e.f. Sept. 18,1991 because of pendency of some enquiries subsequently started in the year 1998. According to the learned Counsel, for promotion w.e.f, September 18, 1991, which in fact had been ordered, the record only upto the date of consideration for promotion had to be taken into consideration and the subsequent enquiries can have no bearing on the petitioner''s promotion w.e.f. September 18, 1991. In support of his contention, learned Counsel for the petitioner cited judgments reported as Bank of India and Anr. v. Degala Suryanarayana, 1999(4) SLR 292 Des Raj v. Food Corporation of India 1996(2) SLR 781 and State Bank ofPatiala & Ors, v. O.P. Latka 1995(3) RSJ 148 (both Division Bench judgments of this Court); and New Bank of India v. N.P, Sehgal 1991(1) RSJ 789.

On the other hand, learned Counsel for the respondents argued that since in the order of promotion, dated September 18, 1991, it was clearly contemplated that it should be ensured that no vigilance case is pending/contemplated against the official before the release of promotion orders by the concerned authority, the petitioner cannot be promoted as enquiries are pending against him.

After hearing the learned Counsel for the parties we are of the view that the writ petition is liable to succeed.

It is by now well settled that the record of a particular officer for purpose of promotion has to be considered only upto the date the consideration takes place. If an enquiry is pending on that date, a sealed cover method can be resorted to or the promotion can be kept in abeyance till the departmental enquiry is over. On being exonerated, the promotion cannot be withheld on the ground that when the exoneration was ordered in the earlier enquiry, some other enquiry or enquiries had been started later on which have not reached the final stage. If this is allowed perhaps an officer, as in the present case, may not get promotion at all. If a person is found guilty in the subsequent enquiries he can be awarded punishment in the promoted rank. The authorities cited by the learned Counsel for the petitioner do support the above mentioned view. In para 14 of the judgment in Degala Suryanarayana''s case (supra), it was observed by the Apex Court as under;

"14. However, the matter as to promotion stands on a different footing and the judgments of the High Court have to be sustained. The sealed cover procedure is now a well established concept in service jurisprudence, The procedure is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him and hence the findings as to his entitlement to the service benefit of promotion, increment etc. are kept in a sealed cover to be opened after the proceedings in question are over (see Union of India Vs. K.V. Jankiraman, etc. etc., . As on 1.1.1986 the only proceedings pending against the respondent were the criminal proceedings which ended into acquittal of the respondent wiping out with retrospective effect the adverse consequences, if any, flowing from the pendency thereof. The departmental enquiry proceedings were initiated with the delivery of the charge-sheet on 3.12.1991. In the year 1986-87 when the respondent became due for promotion and when the promotion committee held its proceedings, there were no departmental enquiry proceedings pending against the respondent. The sealed cover procedure could not have been resorted to nor could the promotion in the year 1986-87 withheld for the D.E. proceedings initiated at the fag end of the year 1991. The High Court was therefore right in directing the promotion to be given effect to which the respondent was found entitled as on 1.1.1986. In the facts and circumstances of the case, the order of punishment made in the year 1995 cannot deprive the respondent of the benefit of the promotion earned on 1.1.1986."

9, In Des Raj''s case (supra), in paragraph 6 it was observed as under :

"We are not in agreement with the stand taken by the respondents in view of the settled position of law laid down in various authorities and in this regard we would like to refer to The State Bank of Patiala and Ors. v. O.P. Latka 1995(3) RSJ 148 - an authority of this Court - in which it was clearly laid, down that when disciplinary proceedings had not started against the employee on the dates when the written test and the interview for promotion were carried out and, the promotional process was going on, any subsequent charge-sheet does not give any right to the management to put the result regarding the promotion of the employee in the sealed cover. Admittedly, there was no charge-sheet or any penal action as on 30.12.1987, which is the material date for our determination. In these circumstances the respondents were not justified in withholding the promotion of the petitioner, when the promotion order was passed vide Annexure P. 1. At the most as on 30.12.1987 the Department was contemplating some inquiry. Such contemplation may or may not become effective. The matter was again considered in another authority of the Hon''ble Supreme Court reported as New Bank of India v. N.P. Sehgal and Anr. 1991(1) RSJ 789 : 1991(2) SLR 59, their Lordships of the Apex Court were pleased to hold that when the disciplinary proceedings were contemplated or under consideration against an employee, it does not constitute a good ground for not considering the employee concerned for promotion, if he is in the zone of consideration. The case in hand is on better footing than the one, just relied upon by us. In the present case, the order of promotion of the petitioner, making him Assistant Grade-I (Depot) was passed. This order could not be withheld or withdrawn under the garb of a contemplated inquiry. Such like matters again came into consideration of the Apex Court and our attention has been invited to the case reported as The State of Madhya Pradesh v. Bant Singh and Anr. 1990(2) RSJ 38 : 1990 (2) SLR 798, and it was the view of the Hon''ble Supreme Court that a promotion of an employee could not be withheld merely on the ground of pendency of disciplinary proceedings which had not even reached at the stage of framing of charge after prima facie case is established. The ratio of this authority is applicable to the facts of the case in hand. In this context we also rely on Union of India v. K. V. Jankiraman (supra), wherein it was held that sealed cover proceedings can be restored to only after issuance of charge-memo/charge-sheet to an employee. Even the pendency of a preliminary investigation prior to that stage is not sufficient to enable the authorities to adopt his procedure. Shri Hemant Kumar, learned Counsel appearing on behalf of the respondents, made an attempt, but in vain, by drawing our attention to the instructions (R. 3). In our considered view these instructions cannot supersede the law of the land and any instructions contrary to the established law have to be ignored."

In view of what has been observed above, we are of the opinion that respondents arc not justified in withholding the promotion of the petitioner as Assistant Grade-I w.e.f. September 18, 1991. Consequently we allow this writ petition and direct the respondent to promote the petitioner as Assistant Grade-I w.e.f. September 18,1991 with all consequential benefits. Let these directions be carried out within a period of two months.

A copy of this order, attested by the Special Secretary of this Court, be given to the learned Counsel for the respondents for onward transmission to the concerned quarters.